Recent reports detailing the heinous human rights abuses committed in Rakhine State in Burma have triggered calls for perpetrators to be held accountable, both domestically and internationally. The Office of the Prosecutor of the International Criminal Court (“ICC”) has opened a preliminary examination1 and the UN Human Rights Council has established an investigative mechanism to collect, preserve, and analyze evidence of crimes.2 International action is not only justified but absolutely necessary given the impossibility of holding perpetrators to account using domestic justice mechanisms. Decades of unchecked human rights abuses against ethnic groups in other areas of Burma and deeply-entrenched domestic structural barriers preventing accountability have emboldened the military and contributed to the current crisis. Without international action to address and tackle Burma’s culture of impunity and the structural barriers that underpin them, this pattern will likely continue unabated.

This Fact Sheet details the domestic structural barriers that impede accountability for perpetrators and preclude justice for victims of human rights abuses in Burma. These obstacles, formalized with the “adoption” by a spurious referendum of a new Constitution of the Republic of the Union of Myanmar (the “Constitution”) in 2008, prevent any full accounting for human rights violations committed by the military (the “Tatmadaw” or “Defense Forces”) in Burma. Obstacles outlined in this Fact Sheet include: (1) constitutional supremacy and autonomy of the military; (2) constitutional guarantees of impunity; (3) military emergency powers; and (4) lack of an independent and accountable judicial system.

Understanding the domestic structural impediments to accountability for the military is crucial to understanding the circumstances that give rise to these offenses and lead to the inevitable conclusion that unless these barriers are dismantled, human rights abuses will go unpunished and a true democracy will not take hold in Burma. Moreover, a situation of national unrest gives the military great powers under the Constitution capable of emboldening and further empowering the military.

While the increasingly volatile situation and humanitarian crisis in Rakhine State highlight military abuses and impunity, the Tatmadaw has for decades engaged in armed conflict with multiple ethnic groups in Burma. These long-running conflicts are characterized by human rights abuses perpetrated by the military that have gone unpunished and continue today in multiple regions, including Shan and Kachin states. The situation in Rakhine State must be understood not in isolation but as part of a continuum, and as another example of how impunity for human rights abuses committed by the military is the rule, not the exception, in Burma.

Except for some small non-material language, these regulations are substantially the same across agencies. To provide context, GJC has annotated USAID’s Standard Provisions for Non-US Non-Governmental Organizations (ADS 303), which is the primary vehicle through which this censorship is being effected. These regulations also include provisions which implement other US abortion restrictions on foreign assistance, including the Helms and Siljander Amendments, which restrict the activities of all recipients of US foreign assistance.

This annotation highlights, explains and contextualizes the laws and policies that restrict or place restrictions on U.S. funding of abortion or family planning services abroad.

Background: After the US Supreme Court’s landmark ruling in Roe v. Wade (which held that the U.S. Constitution protects a woman’s decision to terminate her pregnancy), Congress began restricting abortion access through funding restrictions both domestically (Hyde Amendment) and abroad (the Helms Amendment). Over the years, the funding restrictions on foreign assistance have grown and now encompass all US foreign aid through their incorporation into annual appropriations acts, which are then implemented by agencies providing foreign aid, primarily USAD and the State Department. These congressional restrictions limit what can be done with US funds.

In 1984, President Reagan expanded these restrictions on foreign NGOs through the “Mexico City Policy” (or Global Gag Rule) and began limiting with those organizations could do with their funds from any donor. The Gag Rule was rescinded by President Clinton, reinstated by President Bush, rescinded by President Obama and reinstated and expanded by President Trump.

Today, all entities receiving US foreign aid cannot speak about or provide abortions with US funds in any circumstances, including rape, life endangerment and incest. Furthermore, foreign NGOs receiving US global health assistance aid must now certify that they will not actively promote or provide abortion services as a method of family planning with funds from any donor and all NGOs receiving US global assistance funds cannot partner with or sub-grant to any foreign NGO that won’t certify the same. As a result, today, the United States is denying necessary and safe medical care to women and girls around the world in violation of their rights under international law.

This annotation seeks to demystify US abortion restrictions and map how and where they are put into place.